Case number: 160544
On 30 September 2016, the applicant sought access to, among other things, a copy of a decision of the VCI's Fitness to Practice Committee (FTPC) in respect of a case that was reported on by the VCI in its Annual Report 2010. In a decision dated 1 November 2016, the VCI refused access to the report under sections 30 and 37 of the FOI Act. The applicant sought an internal review of the decision to refuse access to the report. On 1 November 2016, the VCI affirmed the original decision to refuse access to the FTPC Report, citing sections 29(1), 30(1)(a), 35(1)(a) and 37 of the FOI Act. On the same date, the applicant sought a review by this Office of that decision.
I have decided to conclude this review by way of a formal, binding decision. In conducting the review, I have had regard to the correspondence between the VCI and the applicant as described above. I have also had regard to the correspondence between this Office and both the VCI and the applicant on the matter, and to the contents of the record at issue.
This review is concerned solely with whether the VCI was justified in its decision to refuse access to the FTPC Report at issue.
I wish to draw attention at the outset to section 22(12)(b) of the FOI Act which provides that a decision to refuse to grant a request shall be presumed not to have been justified unless the body concerned shows to the satisfaction of the Commissioner that its decision was justified. This means that the onus is on the VCI of satisfying this Office that its decision to refuse access to the record sought was justified.
It is worth noting at the outset that the VCI's 2010 Annual Report contained a description of the complaint which gave rise to the report sought and to the findings of the FTPC. According to the Annual Report, the case concerned a veterinary practitioner who had supplied vaccination certificates for a litter of puppies which had been subsequently exported to the UK. The complaint centred around the fact that one of the vaccination certificates had not been fully completed and therefore could not be identified as belonging to the puppy with which it travelled. The FTPC considered the evidence put before it by the Registrar and ruled that there was no evidence of professional misconduct by the veterinary practitioner and that no sanction should be applied to the veterinary practitioner. The Committee made a number of recommendations to the Council concerning vaccination certificates for companion animals. The decision and recommendations were reported to the Council. It is also worth noting that the recommendations made by the FTPC were released to the applicant in response to another part of her FOI request
The VCI relied on sections 29, 30, 35 and 37 of the FOI Act in refusing access to the record sought. In the context of applying one or more of those exemptions, it argued that release of the record would be contrary to the Veterinary Practice Act 2005 and that it is not permitted by the 2005 Act to disclose the record to anyone other than the registrant. I will address the VCI's arguments relating to the Veterinary Practice Act 2005 in the first instance.
Veterinary Practice Act 2005
The VCI argued that section 79 of the 2005 Act permits FTPC reports to be provided only to the person to whom the inquiry relates and that it does not provide for the provision of such reports to any other person. It argued that if the legislature had intended for the report to be provided to any other individual, including the complainant, this would have been expressly provided for in section 79 and that disclosure of the report would therefore be contrary to the Act.
It seems to me that the VCI has applied an incorrect interpretation of the scope and purpose of section 79. The plain language of the section provides that the FTPC must make a report of the enquiry and its findings to the VCI and must send a copy of that report to the registered person to whom the inquiry relates. In my view, this does not amount to a prohibition on the release of such reports to any other person. Rather, it operates to ensure that the person to whom the inquiry relates is given a copy of the report. I do not accept the VCI's argument that disclosure of the report to any other party under FOI is not permitted by the 2005 Act or that such disclosure would be contrary to that Act.
I will now proceed to consider the VCI's arguments in respect of the applicability of section 37 as I believe my findings are of direct relevance to the arguments raised in relation to the remaining exemptions cited. Before doing so, I wish to address the VCI's related argument that the entire report comprises personal data as defined by the Data Protection Acts 1998 to 2003 and that it is prohibited, under the Acts, from disclosing the report. Section 1(5)(a) of the Data Protection Act 1988 (as amended provides that "A right conferred by this Act shall not prejudice the exercise of a right conferred by the Freedom of Information Act 1997." Accordingly, I find that the VCI is not entitled to refuse to grant access to any parts of the record at issue solely on the ground that release of the information at issue is prohibited by the Data Protection Act.
Section 37(1) of the FOI Act, subject to other provisions of section 37, provides for the mandatory refusal of a request if access to the record concerned would involve the disclosure of personal information relating to an individual or individuals other than the requester. For the purposes of the Act, personal information is defined as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential. The Act details fourteen specific categories of information that is personal information, without prejudice to the generality of the foregoing definition, including "(iii) information relating to the employment or employment history of the individual", "(xii) the name of the individual where it appears with other personal information relating to the individual or where disclosure of the name would, or would be likely to, establish that any personal information held by the public body concerned relates to the individual" and "(xiv) the views or opinions of another person about the individual".
Having regard to the definition of personal information as set out above, I am satisfied that the identifying details of the registered person and the witnesses who gave evidence to the FTPC comprise personal information relating to those individuals. For the sake of clarity, this includes both the names of the individuals concerned, the registration number and registered address of the registered person, the stated address of the complainant, all references to the complainant's place of work, and a small amount of information that would allow for the identification of the complainant's place of work or location. I find, therefore, that section 37(1) applies to this information.
Much of the VCI's argument for exempting the record under section 37 is concerned with the effect of disclosing personal information contained in reports such as the one at issue. It also argued that the veterinary profession is a small profession where rumours often circulate as to whether a particular registrant is the subject of an inquiry and that even the release of a redacted report would confirm any rumours in circulation. It seems to me that this argument would be valid only in circumstances where the release of a redacted report would still allow for the identification of the individual concerned.
Having carefully considered the contents of the report, I am satisfied that the release of a redacted version, with the redaction of the information above that I have found to be personal information, would not involve the disclosure of personal information relating to identifiable individuals. Rather, it would involve the disclosure of a more detailed account of the nature and facts of the complaint, the issues considered by the FTPC and details of its findings and recommendations. Indeed, the information to be disclosed would be of a similar nature to that published by the VCI in its 2010 Annual Report as described above, albeit in greater detail. I find, therefore, that section 37(1) does not apply to the remainder of the report, with the redaction of the information above that I have found to comprise personal information.
Having found that section 37(1) applies to certain information, I must go on to consider if any of the additional elements of section 37 serve to disapply that exemption.
Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case. Section 37(5) of the FOI Act provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the information would be to the benefit of the person to whom the information relates.
I am satisfied that the release of the information at issue would not be to the benefit of the individuals concerned and that section 37(5)(b) does not apply. In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates.
The FOI Act itself recognises a public interest in ensuring the openness, transparency, and accountability of public bodies in how they perform their functions. Arguably, the release of the report in full would serve to ensure optimum transparency and accountability in how the VCI conducted its inquiry. On the other hand, the Act also recognises the public interest in the protection of the right to privacy. This is evident both in the language of section 37 and in the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.
It is worth noting that under section 89 of the Veterinary Practice Act 2005, the VCI must publish, on an annual basis, certain details where a registered person is found to have a case to answer, including particulars of the finding and the sanction together with the identity of the registered person. In this case, the FTPC found that the registered person had no case to answer. It seems to me that the public interest in releasing the entire report, including the information which I have found to be personal information, is not sufficiently strong to outweigh the strong privacy rights of the individuals concerned. I find, therefore, that section 37(5)(a) does not apply.
Having found that section 37(1) applies to certain personal information contained in the report, I have no need to consider the applicability of the remaining exemptions cited to that particular information. However, I must now proceed to consider if the remaining exemptions apply to the balance of the report.
Section 29(1) allows for the refusal of a request if (a) the records concerned contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations) and (b) the granting of the request would, in the opinion of the head of the FOI body, be contrary to the public interest.
The VCI argued that the report contains matters relating to the deliberative process of the FTPC and that granting the request would, in the opinion of the head of the FOI body, be contrary to the public interest as the private hearing process will be entirely frustrated and would be in direct contravention of the legislative scheme under which enquiries are held.
It should be noted at the outset that the public interest test at subsection (b) is a higher one than the public interest balancing test contained in other provisions of the FOI Act. It must be shown that the granting of the request would be contrary to the public interest. In circumstances where the version of the record at issue contains no identifying personal information, I fail to see how release of the report could possibly frustrate the private hearing process or how it would be in direct contravention of the 2005 Act. I find, therefore, that section 29 does not apply.
Section 30(1)(a) is a discretionary exemption that applies where the release of a record could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of the FOI body or the procedures or methods employed for the conduct of such tests etc. It seems to me that this is the VCI's primary concern in this case. It argued that the release of the report could reasonably be expected to prejudice the effectiveness of the FTPC inquiry process. Among other things, it argued that registered persons would be less likely to co-operate with the VCI and to give evidence at inquiries if it were known that any FTPC report produced could subsequently be accessed by a third party. It also argued that members of the public would be less likely to make a complaint.
The applicant argued that no prejudice will arise as the FTPC has the power to compel witnesses under section 78(7) of the 2005 Act. The VCI rejected this argument. It argued that registered persons cannot be compelled to participate with the VCI in respect of the investigation of a complaint or to give evidence at an inquiry as otherwise the protection against self-incrimination would be contravened. It argued that the functions of the VCI would be significantly impaired if a registered person refused to assist or give evidence to an inquiry on the ground that anything he or she might say during the inquiry could be made available to a third party. The VCI also argued that the powers to compel witnesses do not extend to individuals living outside of the jurisdiction and that it cannot compel members of the public to make complaints. Essentially its argument is that it relies on the willingness of the various parties to participate willingly in the inquiry process and that the participation of such individuals could reasonably be expected to be prejudiced if it was known that FTPC reports are released under FOI.
I have some difficulty in accepting, as a matter of course, that the disclosure of FTPC reports could reasonably be expected to cause each of the various categories of parties outlined above to refuse to assist or give evidence to an inquiry. Nevertheless, I accept the VCI's argument that the disclosure of full unabridged versions of such reports could reasonably be expected to cause at least some of the parties to be less willing to co-operate. However, what is at issue here is a redacted version of such a report with the redaction of identifying personal information. I do not accept that the release of this report, in redacted form, could reasonably be expected to give rise to the harms identified. I find, therefore, that section 30(1)(a) does not apply.
Section 35(1)(a) provides for the protection of information given to a public body in confidence. For the exemption to apply, it is necessary to show the following;
Section 35(1)(a) does not apply if the public interest would, on balance, be better served by granting rather than by refusing to grant the request (section 35(3) refers). My reasons for rejecting the VCI's argument that section 35(1)(a) applies are similar to those outlined in respect of section 30(1)(a). In essence, I do not accept that the release of this report, in redacted form, would be likely to prejudice the giving to the VCI of further similar information from the same person or other persons. I find that section 35(1)(a) does not apply.
I hereby vary the decision of the VCI in this case. I direct the release of the report sought with the redaction of personal information as described below:
Page 1: The name, registration number and registered address of the registered person
Page 2: The complainant's details and the name of the individual in the last line
Page 3: Details relating to the three witnesses, as set out at points 1 to 3
Page 4: - The names of all persons identified plus:
- All text after "The complainant..." in the first paragraph under the heading
- All text between "...contacted by..." and "...who had discovered..." in the first
sentence of paragraph two under the heading "Facts" and all text in that
sentence after "...of a car..."
- All text between "...attended at..." and "...she found..." in the second sentence
of paragraph two
- All text after "...details of..." in the first sentence of paragraph four under the
- All text between "...rang.." and "...and asked to speak..." in the second
sentence of paragraph four
- All text between "...of the..." and "...telephoned..." in the third sentence of
- All text after "...complaint form to..." in paragraph five
- The first word of sentence two of paragraph seven
- All text after "...that there is..." in sentence three of paragraph seven
Page 5: - The names of all persons identified
Page 6: - The names of all persons identified
Page 7: - The names of all persons identified
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.